Between a rock and a high place: Meet Iowa's new medical marijuana statute

In 2017, the Iowa Legislature legalized medical marijuana for residents with qualifying medical conditions. Although the new law has been in effect for more than a year, there are no manufacturers or dispensaries in existence yet to create and sell the controversial products, but that could change very soon. Under the law, the state-licensed manufacturers and dispensaries must be prepared to supply and sell their wares by December 1, 2018. So in less than two months, Iowans carrying a medical cannabidiol registration card will finally be allowed to purchase and use the products.

While the law will provide relief for a number of Iowans suffering from a narrowly defined set of debilitating medical conditions, employers may be wondering how the law will interact with their drug-free policies. The statute is so new it has yet to be tested in the state's courts, making it more difficult to predict the legal risks of any employment decisions related to an employee's legal use of medical marijuana products. Fortunately, Iowa is far from the first state to legalize marijuana for medical use, so we can take note of the issues and resolutions that have arisen in other states.

The basics: Iowa's medical marijuana law

Before evaluating your employment risks and practices in conjunction with the new statute, it's helpful to know a few basics about the law and medical marijuana products:

  • Though Iowa has legalized medical marijuana for sale and use, marijuana in any form and for any use is still considered an illegal substance under the federal Controlled Substances Act.
  • Individuals may receive a medical cannabidiol card in Iowa only if they have a qualifying medical condition. Currently, the scope of eligible conditions is limited, and the number of Iowans who have applied for and received a card remains low.
  • Iowa's medical marijuana products may not be smoked, nor may they be sold as an edible.
  • Iowa has heavily restricted the amount of THC, one of marijuana's main psychoactive components, that may be contained in legal medicinal products. There are no restrictions, however, on the amount of product a registered cardholder may possess or use in any certain period of time.
  • An advisory board has been established to consider issues resulting from the new law and make recommendations to the state legislature.
  • The board and the legislature continue to receive requests for more medical conditions to be included under the law. Additionally, the types of products and acceptable THC levels continue to be discussed and reviewed. As a result, the law will be in constant flux as the legislature reviews and makes changes during each session.

Does enforcing drug-free workplace policies risk bias claims?

Many employers enforce strict drug-free policies within the workplace and require drug tests for employees before they are hired or after an accident has occurred. With the new medical marijuana law, a positive drug test from a current or potential employee will leave employers facing difficult questions: Do you still have to hire the individual? Can you terminate the employee?

Luckily, the Iowa Legislature contemplated the issues and updated a section of the Iowa Code related to drug-free workplace policies. An employer that has established a policy and testing program under Section 730.5 of the code may test and take actions against current and prospective employees who have a positive drug test because of their legal use of medical marijuana.

Even with that statutory protection, taking an action against current or prospective employees may place an employer in a precarious position. In other states, individuals legally using marijuana for medical purposes have argued that the failure to accommodate their use for medical purposes is discriminatory. It's certainly possible that an individual may try to file a similar action in Iowa to test the law and its reading in regard to other sections of the code.

Fortunately, most states that have already faced such legal actions have found the employees' arguments meritless under laws similar to Iowa's. However, a large number of states have since passed antidiscrimination laws aimed at protecting individuals using marijuana for medical purposes from facing negative employment decisions because of positive drug tests. No such antidiscrimination law currently exists in Iowa. Additionally, since marijuana remains illegal under federal law, the Americans with Disabilities Act (ADA) offers no protection in those situations.

Bottom line

Besides the risk of a potential discrimination suit, employers must always remember that marijuana is still considered an illegal substance under federal law. You should carefully consider how hiring or retaining an individual with a positive drug test because of medical marijuana use may affect your liability under federal laws and regulations.

The author can be reached at KatelynnMcCollough@davisbrownlaw.com.

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